In 1934 US v. Ulysses gave us “the intent to arouse” as legal doctrine, which continues to echo loudly in the popular and commercial conception of what serious treatment of sex in cinema can and should be.

In 1954 US v. Roth gave us “socially redeeming value/artistic merit”, which even today is applied as a quasi-legal standard in the US, and a standard backed by force of law in other countries.

In 1964 Jacobellis v. Ohio conflates obscenity with pornography, and adds the tremendously unhelpful phrase “I know it when I see it.” to the popular conception of what is a legitimate cinematic exploration of sexuality and what is pornography.

And to cap it off, in 1973 Miller v California sets as the law of the land an inscrutable, capricious, and geographically fractured standard for what is constitutionally protect speech.

So where does that leave us the day after the court announces the Miller decision?

After the 1973 Miller decision, it is legal to screen sexually explicit films, except when and where it isn’t. Like Hollywood producers in the 1920, producers of sexually explicit films in the post-Miller era are faced with a highly idiosyncratic market. In the 1970s the same film that might play in Peoria might be banned in Boston. Cities like San Francisco and New York are wide open, with people lining up in the streets to see films like Deep Throat. But playing the same film in more socially conservative areas could land you in jail.

Unlike Loving v. Virginia (the 1967 Supreme court case that established constitutional protection for the right to heterosexual marriage, regardless of the race(s) of the persons involved,) or Lawrence v. Texas (the 2005 case that established constitutional protection for non-penile/vaginal intercourse between consenting adults, regardless of their genders) Miller v. California does not represent some great clarifying moment in law and custom. The Miller case fails to settle the question of the legality of screening sexually explicit films with any surety, and moreover it’s not even clear whether or not even making film that depicts actual sexual activity is legal. In addition to risk of obscenity charges for the distribution of films, there is also the risk of pandering and prostitution charges being leveled at the producers and cast.

The majority of sexually explicit offerings (before and after Miller) are more akin “actualities” than cinema, made primarily (some might say exclusively) for the masturbatory pleasure of the audience (see the “Overcoat?” scene in the 1970 film The Owl and the Pussycat,) with other elements interposed primarily as defense against prosecution.

But even as the X-rating (with all it’s masturbatory connotations) are already being lampooned, the possibilities of “adults only” cinema is still being given serious consideration, by Hollywood and independent “adult” producers both.

In 1973, three years after United Artists petitions to have Midnight Cowboy’s rating lower to an R, (and three years after the X-rating is lampooned in The Owl and the Pussycat,) United Artists is willing to roll the the dice one more time on the X-rating with Bernardo Bertolucci’s Last Tango in Paris, featuring Marlon Brando. ( Last Tango will prove to be the last time a star of this magnitude will appear in an Adults Only feature.)

At the same time, exploitation filmmakers were undertaking more ambitious productions. The box office receipts from playing in mainstream theaters fuels (relatively speaking) bigger budgets and bigger ideas,

And while Miller provides no real guidance on how to avoid the charge of obscenity, there are markets that are relatively low risk, and productions can hide from or pay off local law enforcement to avoid pandering and prostitution charges.

In fact, this legally constricted post Miller/pre Freeman era will later be looked back on as The Golden Age of Adult Films. If you look at the best efforts from this time, you can see (if you’ll forgive my peering around the edge of the frame) the filmmakers aspirations and ambitions. I would go as far as saying that some of these films compare favorably with today’s celebrated indie/film festival circuit fare.

(Like most film fest efforts, a lot of what makes these films exciting is the promise of what a future, better funded, better crafted effort might yield than the film itself, and for an enthusiast that’s often enough. But like The Blair Witch Project, when viewed in light of how it all turned out, the films from “the Golden Age” aren’t quite so thrilling. No Kevin Smith would emerge from the 70s ‘porno chic” era.)

Last Tango would be the last time a “mainstream” film would push the limits of explicit sexuality until the NC-17 rating in 1990, but even then those efforts would be obscure arthouse pictures without marque stars (Henry & June, The Cook, the Thief, His Wife, and Her Lover.)

So why did it all come tumbling down? In less than a decade Hollywood had gone from Elizebeth Taylor bellowing “Hump the hostess!” to Marlon Brando muttering “Get thuh buttah.” and the landscape of legal censorship had gone from a film like The Lovers being charged with obscenity to enthusiastic reviews of The Devil in Miss Jones appearing in Newsweek and Variety.

“New York [in the 70s] was a scary, dangerous, sexually overheated place back then. I remember always looking far ahead on the sidewalk where I was walking, ready to cross over to the other side of the street in a flash if I saw something or someone menacing up ahead.”

To get a sense of you can watch Taxi Driver, Summer of Sam, Gay Sex in the 70s and reruns of The Equalizer.

And the mood wasn’t so different in the rest of the country. There was a sense that the sexual revolution of the 60s had gone too far, and the backlash started to build.

Seeing the handwriting on the wall, and (ever) risk averse, Hollywood began offering films like Looking for Mr. Goodbar, Dressed to Kill, andCruising; fully-funded R-rated cautionary tales about sexual excess. With the benefit of hindsight The Opening of Misty Beethoven in 1976 would end up being regard as the high water mark of the Golden Age of Adult Cinema, and nothing after it had the creative or financial clout to stand against the forces that rallied together and began the great push back. X-rated films were driven out of the theaters and away from the box office receipts that had fueled their (short lived) golden age.

If things had remained this way, I don’t think it’s unreasonable to suggest that sexually explicit films would have reverted to the “Elk’s Lodge basement smokers” of the 50s and early 60s; clandestine screenings of actualities for small groups. But instead, changes in law and technology would arrive that ultimately would mean no one would ever have to sit next to a stranger (or rent a raincoat!) to see sexual explicit imagery ever again.

In section II)C we’ll look at:

Why Betamax vs VHS was the wrong question, and is still giving us wrong answers.

California vs. Freeman: The revenge of the magic camera: How illegal actions become constitutionally protected speech.

6 Responses

a) not that you’d want it, but you’re well beyond the requirements to have an MA degree is this stuff – it’s all pretty impressively detailed – ,
b) I do not envy you trying to get this argument into a 90m lecture,
c) no “wax dripping”? someone has a surfeit of shame, and
d) this is all very interesting, useful…and outside my area of knowledge…and I still don’t think you need the MPAA argument.

I’m pretty much convinced on your MPAA argument, btw, with the caveat that I think the story here still ignores the larger political economy of cinema. Perhaps QT’s contract doesn’t require that he deliver an R rating, but certainly almost any studio-distributed film director’s contract will require that…and that contract is with a studio (w global interests) that is MPAA signatory, ie, there is a system in place that supports a particular definition of R/NC-17, whatever the outliers like you, JMC, and Winterbottom are doing. That was my point. But it’s pretty moot, because the argument about the juridical discourse is much closer to the point, I think, and much more interesting.
The story of how the legal structure has twisted and squirmed around the problem of sex and culture, trying out different language with profoundly different results…this is a story that is new to me. (That is to say, I- and I suspect many people – have an incomplete version of it that begins w the demise of the Code and ends with Miller.)
I don’t have anything useful to add to this argument, I don’t think, except a few points that are “outside the frame” –
You are stumbling onto a couple of reasons intellectuals more or less dropped the “pornography” question – a) Carolyn Clover and Laura Mulvey got there first and defined the problem in terms of second wave feminism…that’s the easy answer…b) more complexly, the tripartite understanding of film as communication (rather than art) leads to an impasse – is “porn” in the mind of the maker, in details of the frame, or in the pants of the audience? Every answer has its partisans and ultimately there isn’t a satisfying answer…and therefore the question becomes closed, more or less. Your problem, that of the truly “adult” film, is squarely on the razor’s edge of this incommensurable question – the question the SCOTUS faced in Miller and landed on an an answer that is an a kind of open text, as you note…you point out the endless problems that answer created for filmmakers trying to make and distribute movies…however, from an audience perspective, Miller has the virtue of leaving the question open and negotiable. It seems to beg for local police intervention…but it must also make this local police think: who am I dealing with…can I make this charge stick? So, I don’t necessarily think Miller is a great solution, but may be worth considering as a pragmatic solution to an incommensurable problem. Sadly incommensurable, perhaps, but considering the culture of the US, pragmatic nonetheless.
Finally, to return to the political economy (as your audiences surely will), many folks will see the mid-70s rise of high concept and the blockbuster strategy as inseparable from the industry’s turn away from “adult” interest films. The promise of the mass audience revealed by Jaws, Star Wars, et al, quickly squashed much interest in a niche audience that excluded anyone under 18. While there are certainly cultural explanations for the turn away from explicit cinema, many people still see the inherent conservatism of the studios as a primary cause. Here’s a question: If Rupert Murdoch or Les Moonves suddenly decided to be in business with Tony Comstock…would any of these “definitions” change?

I have to admit, though, I don’t understand your The Incredibles reference at all, at least in the context of this post. Perhaps technology later made everyone “special” – as “threatened” in The Incredibles – by letting everyone make porn (or more importantly, make it dirt cheap) but what’s the connection here?

a) not that you’d want it, but you’re well beyond the requirements to have an MA degree is this stuff – it’s all pretty impressively detailed – ,

Actually, one of the reasons I’m going to all this effort is I have some idea that are significantly more provocative that I’d like to take on, so it seems prudent to start building the academic bone fides. The realpolitck is that people who lecture at universities don’t get charged with obscenity.

There is, however, a catch 22, actually two of them. If you prepare your defense adequately enough to stave off prosecution, you are more or less playing into the hands of the status quo; and even if one could be cunning enough to avoid the first pitfall, if one were to create a film that was self-evidently obscene and also self-evidently exactly the sort of decent the First Ammendment was intended to protect, the bear can simply take a step back. And of course, whether it’s Tony Comstock, MA; or Tony Comstock MFA, or Tony Comstock Phd; it can all still go terribly wrong and you end up on jail and all your hard earned money seized under RICO statutes.

b) I do not envy you trying to get this argument into a 90m lecture,

Yeah, and I’m only about 1/3rd through my outline!

c) no “wax dripping”? someone has a surfeit of shame, and

I think that’s a miss-read. Like Hays, Cambria is just making his best guess on how to keep his clients out of hot water. No shame involved at all.

d) this is all very interesting, useful…and outside my area of knowledge…and I still don’t think you need the MPAA argument.

The MPAA thread is important because the whole story is going to be reprised during the period of 1996-2006. Like the tumult of the late 60s/early70s what I hope I’ll show is how is that even with fairly lax limits on what can be shown/sold downward trajectory commercial sexuality displaces upward trajectory sexuality,

I’m pretty much convinced on your MPAA argument, btw, with the caveat that I think the story here still ignores the larger political economy of cinema. Perhaps QT’s contract doesn’t require that he deliver an R rating, but certainly almost any studio-distributed film director’s contract will require that…and that contract is with a studio (w global interests) that is MPAA signatory, ie, there is a system in place that supports a particular definition of R/NC-17, whatever the outliers like you, JMC, and Winterbottom are doing. That was my point. But it’s pretty moot, because the argument about the juridical discourse is much closer to the point, I think, and much more interesting.

That’s more or less my point about the MPAA. The MPAA is really relevant to what we see in AO cinema in the days of the Production Code, but the advent of the four tier system is the begining the end of the AO space and the MPAA’s control over that space.

The story of how the legal structure has twisted and squirmed around the problem of sex and culture, trying out different language with profoundly different results…this is a story that is new to me. (That is to say, I- and I suspect many people – have an incomplete version of it that begins w the demise of the Code and ends with Miller.)

I don’t have anything useful to add to this argument, I don’t think, except a few points that are “outside the frame” –
You are stumbling onto a couple of reasons intellectuals more or less dropped the “pornography” question – a) Carolyn Clover and Laura Mulvey got there first and defined the problem in terms of second wave feminism…that’s the easy answer…b) more complexly, the tripartite understanding of film as communication (rather than art) leads to an impasse – is “porn” in the mind of the maker, in details of the frame, or in the pants of the audience? Every answer has its partisans and ultimately there isn’t a satisfying answer…and therefore the question becomes closed, more or less. Your problem, that of the truly “adult” film, is squarely on the razor’s edge of this incommensurable question – the question the SCOTUS faced in Miller and landed on an an answer that is an a kind of open text, as you note…you point out the endless problems that answer created for filmmakers trying to make and distribute movies…however, from an audience perspective, Miller has the virtue of leaving the question open and negotiable. It seems to beg for local police intervention…but it must also make this local police think: who am I dealing with…can I make this charge stick? So, I don’t necessarily think Miller is a great solution, but may be worth considering as a pragmatic solution to an incommensurable problem. Sadly incommensurable, perhaps, but considering the culture of the US, pragmatic nonetheless.

A couple of things to remember:

1) Stewart never backs away from the idea that the state has a compelling interest in regulating “hardcore pornography”. Only that he doesn’t believe a legally workable defiition can ever be found, and that the judicial overhead involved is unsustainable.

2) Anti-sodomy laws will enjoy constitutional protection for another 32 years after Miller, and in his decent Scalia asserts the states constitutional right to regulate (among other things) masturbation.

The other thing that bothers me is that the people having these “what is porn?” wanks never have to live with the realpolicick of how this plays out. Lots of word games, but at the end of night, they go home, sleep in their own bed, and never have to wonder if their book is going to get delisted by Amazon, or if their website is going to get massively deranked by Google, or if law enforcement is going to make an unannounced visit.

Finally, to return to the political economy (as your audiences surely will), many folks will see the mid-70s rise of high concept and the blockbuster strategy as inseparable from the industry’s turn away from “adult” interest films. The promise of the mass audience revealed by Jaws, Star Wars, et al, quickly squashed much interest in a niche audience that excluded anyone under 18. While there are certainly cultural explanations for the turn away from explicit cinema, many people still see the inherent conservatism of the studios as a primary cause.

Huge important point. When I try to construct counterfactuals with a trademarked X rating and/or a Miller ruling that throws out obscenity, I still don’t get to a particularly thriving AO cinema. Maybe (maybe) HBO/cable evolves differently, but that brings us to Tom Atzet’s Climax ecology theories. No matter how bad the burn, sooner or later things revert.

re: “self-evidently obscene and also self-evidently exactly the sort of decent the First Ammendment was intended to protect.”

Come at it from the standpoint of self-reference. A film that is self-consciously obscene (ditch the ‘self-evidently’), if made in response to the Miller case (because of the Miller case, as a protest of the Miller case), then it is necessarily a work of “political expression”.

If you approach Miller in this way, you reach an absurdity: you pass the test because your obscene film is protest, and your obscene film is protest because it passes the test.

I guess I could have been a little clearer. As you note below, the ‘reasonable person from the community’ standard effectively randomizes the freedom of speech a citizen enjoys by giving the local moral majority a blank check to enforce their own reactionary brand of sexual taboos on all residents and business owners. Obviously, this doesn’t sound much like a Constitutional protection since it gives each state and municipality the power to interpret the scope of each resident’s 1st Amendment liberties re: sexually themed speech. (This is an improper delegation of the judiciary’s power of review, akin to allowing each successive Congress the freedom to interpret the scope of their commerce and spending powers, but worse. Rather than deferring to the mob via our representatives, the Court with the Miller test is deferring to mobs plural, tout court.)

This is all true, unless your film can pass as a “serious political expression,” that is, unless the sole reason the film exists is to forcefully respond to Miller itself. In other words, Miller can be used to regulate speech right up to the point where Miller becomes the generating cause of the speech being regulated.

Obscenity continues to be an issue for sure. I just got permission from one of our early test couples to submit their short film “Untitled Study #2″ to the MPAA, and look forward to seeing a film that contains sexual acts regarded as out and out obscenity prosecution bait (google [seymore butts four finger club] carrying the MPAA’s shield.

But what you see as my “out” I see as the state’s out. The state can simply strategically retreat and declare whatever provocative challenge is made not to be obscene without doing any damage to legal notion of legal obscenity, or the chilling effect that has.

Just as big a problem as the threat of state action is the surfeit of bad-actors in any form of commercialized sexuality. Amazon is more than happy to have a regular category for very life-like masterbation sleeves, but pornography is out. Part of that is obscenity, at least as big a part is tooling costs of molded rubber vulvas verses DVDs.

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About The Intent to Arouse

In a world that seems awash in sexualized imagery, why is it that so little of this imagery speaks to the common pleasurable reality of sex? Award-winning filmmaker Tony Comstock takes us into the legal and business realities that shape and too often warp the sexual imagery we see. Drawing on examples from Hollywood’s history [...]more →